0520180216
05-10-2018
Celinda L.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Celinda L.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Request No. 0520180216
Appeal No. 0120143152
Hearing No. 420-2014-00092X
Agency No. ARCEERDC13MAY01796
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120143152 (December 19, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. � 1614.405(c).
Complainant worked as a Management Analyst, DJ-343-02, at the Agency's Engineer Research and Development Center in Vicksburg, Mississippi. On July 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age and reprisal under the Age discrimination in Employment Act of 1967 when: (1) her supervisor (S1) gave her a letter of reprimand for "Discourtesy Directed towards a Supervisor"; and (2) S1 selected her for a Management Analyst, DJ-02/03 position, which was a reassignment with promotion potential, rather than selecting her for a Management Analyst, DJ-03 position, which would have been a promotion.
The Agency accepted claim 1 for investigation, but dismissed claim 2 for untimely EEO counselor contact. At the conclusion of the investigation of claim 1, Complainant requested a hearing. The EEOC Administrative Judge (AJ) affirmed the Agency's dismissal of claim 2. The AJ then issued a decision in favor of the Agency by summary judgment with respect to claim 1. The Agency implemented the AJ's decision, finding that Complainant did not establish that she was subjected to age discrimination or unlawful retaliation.
Complainant appealed. EEOC Appeal No. 0120143152 found that claim 2 was properly dismissed. As to summary judgement on the reprimand claim (claim 1), the decision found that the record was not sufficiently developed, and that there were genuine issues of material fact that required a hearing. The decision noted that Complainant engaged in protected activity prior to receiving the letter of reprimand. The matter was remanded for further processing.
In its request for reconsideration, the Agency argues that the matter should be dismissed because Complainant retired on December 31, 2013. The Agency noted that "neither party notified the Commission of [Complainant's] retirement prior to the issuance of the decision." However, the Agency argues that the matter is moot because her retirement ensured discrimination would not recur and, under the ADEA, Complainant is not entitled to compensatory damages or attorney's fees.
We find the matter is not moot and there remains relief to which Complainant may be entitled if a finding were made following a hearing. The letter of reprimand is still in Complainant's personnel records and has the potential to harm her if she seeks other employment. Moreover, other relief could be ordered such as training and consideration of disciplinary action for the responsible management officials, as well as a posting order.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120143152 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
With regard to the reprimand claim (claim 1), the Agency is directed to submit a hearing request and the complaint file, along with this decision and our decision in EEOC Appeal No. 0120143152, to the EEOC Hearings Unit of the Birmingham District Office within thirty (30) calendar days of the date of this decision. The Agency shall provide written notification to Complainant and the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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